143 N.Y.S. 835 | N.Y. App. Div. | 1913
Plaintiff brings this action against defendant, an attorney of this court, among other things to cancel an agreement made between the parties by which defendant was to appear in various condemnation proceedings brought by the city of New York against certain persons with whom plaintiff claims to have agreements relative to such proceedings, and an assignment of a portion of the awards which have been or may be made therein, and to compel an accounting by defendant as to all moneys collected by him in such proceedings. At the commencement of the action plaintiff obtained ex parte an order enjoining defendant “from in any manner collecting any of the fees or percentages of the awards due the plaintiff, by reason of its contracts with the owners or claimants as appears in said complaint and from exacting or receiving from any of such owners or claimants any sum or sums of money whatsoever for his services heretofore rendered, or that may hereafter be rendered in connection therewith, or from soliciting any retainers of fees from any such owners or claimants, or influencing such owner to cancel his contract and from in any manner interfering with plaintiff’s said business and from revealing to any person the names of plaintiff’s clients.” A motion to continue such injunction was after argument denied by the Special Term of this court, and from such order plaintiff has appealed to this Appellate Division. Thereafter, upon application to a justice thereof, an order was granted requiring defendant to show cause before the said Appellate Division why the temporary injunction order should not be continued pending the hearing and decision of the said appeal. Upon the hearing of such motion two questions arise, first, as to the
Prior to September 1, 1913, the statute regulating the granting of injunction orders pending the trial of an action was as follows: “ Except where it is otherwise specially prescribed by law,- an injunction order may be granted by the court in which the action is brought, or by a judge thereof, or by any county judge; and where it is granted by a judge, it may be enforced as the order of the court.” (Code Civ. Proc. § 606.) Construing a similar provision of the Code of Procedure (§ 218), it was held that when the court at Special Term, after argument, had denied an application for a temporary injunction, there was no power in an appellate tribunal to revive and continue that injunction pending an appeal from such order or judgment. (Spears v. Mathews, 66 N. Y. 127.) In 1913 the section above referred to was 'amended by adding thereto the following clause: "An injunction order which may be modified or vacated by the Appellate Division may also be granted or continued by the Appellate Division, or a justice thereof, pending appeal to that court or to the Court of Appeals from an order or judgment denying or vacating an injunction.”. (Laws of 1913, chap. 112.) The language of this amendment is not entirely clear. The first clause thereof, literally construed, would seem to say that if an injunction order had been granted by the court at Special Term and an appeal had been taken therefrom, the Appellate Division or a justice thereof might continue such restraining order pending such appeal. Such a construction would be absurd. Remembering the difficulty which was to be overcome, we think that we do not transgress the limits of judicial construction if we transpose its clauses, adding thereto two words. It would then read as follows: ‘' Pending appeal to the Appellate Division or to the Court of Appeals from an order or judgment denying or vacating an injunction, an injunction order which, if granted, may be modified or vacated by the Appellate Division may also he granted or continued by the Appellate Division or a justice thereof.” Assuming, then, the power to exist, we pass to the second question, and in respect to that we are of opinion that the power should not be exercised upon the papers presented to the court at Special Term, or to this
The motion for such injunction is denied, and the temporary injunction granted in the order to show cause is vacated, with ten dollars costs.
Jenks, P. J., Thomas, Carr and Putnam, JJ., concurred.
Motion for injunction denied, and the temporary injunction granted in the order to show cause vacated, with ten dollars costs.